Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Tuesday, May 28, 2013

Warman & National Post v. Fournier – the Interveners Have Started Their Engines - updated

In the Warman v. Fournier copyright litigation, we saw
as of March 14, 2013 that that such
important copyright questions as:

·what is substantial,

·how does fair dealing apply in the context of
news reporting, blogs, and critical comment,

· when the
limitation period begins to run for material posted online, and

·whether there can be copyright in a headline

have been left by
fate to be decided in a case based upon rather strange facts, controversial
parties and on what has been up until now a very lopsided playing field. Leaving aside Richard Warman, the main plaintiff
who is no stranger to the instigation of controversial litigation, we saw Mr.
and Mrs. Fournier (who for their part are also not your typical non-represented
litigants) representing themselves against Warman, who had legal
representation, and the National Post, which for whatever incomprehensible and
unexplained reason was a necessary party below but was supposedly not even aware
of or involved in the earlier proceedings until after the final judgement was
rendered.

Nonetheless, the National Post now appears in full regalia on
the appeal with prominent copyright counsel eager to establish, inter alia, that it has enforceable
copyright in short headlines. Whether or
not one has any sympathy for either Warman or the Fournier’s or both or neither,
there is a lot at stake here from a public interest standpoint. It was quite
clear on March 14, 2013 when I posted my blog that the National Post with
its very experienced copyright counsel would more than adequately represent big
corporate copyright. But the public interest representation was quite another
matter.

First, the now ubiquitous CIPPIC
sought leave to
intervene. CIPPIC is a law school clinic, for which I acted as lead counsel
on its first and probably most influential case to date, which involved an
intervention in the first attempt at mass copyright litigation in Canada –
namely the BMG v.
Does case in 2004-2005. CIPPIC played a key role both behind the scenes and
on the record in facilitating a positive public interest result in that case. The
National Post wants to limit
CIPPIC’s scope of intervention. CIPPIC has responded in
this way.

Nowenter the U.S. based Computer and Communications Industry Association (“CCIA”)
which counts, among its membership, Google and Microsoft. It has filed an
application for leave to intervene in the Warman case that raises some useful points
that are potentially helpful to the public interest point of view. The National
Post has opposed this application to intervene in strenuous terms, or
alternatively to allow it with limits. Interestingly, one of the grounds for objection
to the intervention by the National Post is that CCIA has raised what the
National Post considers to be the new, irrelevant and unnecessary issue of the
application of a certain provision in the Berne Convention specifically regarding
quoatations from newspaper articles. Ironically,
the same counsel now acting for the National Post, when he was acting for CMRRA
as an intervener in the Supreme Court of Canada, strenuously urged the Court in the K-12
Province of Alberta case to consider the very general “three-step” test as set
forth in the Berne Convention, which would have been a new issue at the Supreme
Court level. Prof. Ariel Katz and I argued that the three-step test as found in
international law was an
irrelevant “red herring” in the that case – and the Supreme Court
apparently agreed with us because there was not a word about it in the
judgment.

There may still be some important issues that are not yet be
on the table or which could use further focus. Although it is getting late in
the day, it is possible that other would-be interveners on both sides may
emerge, given that this is now clearly a high stakes case and the playing field
has been largely levelled. This could be interesting because there are probably
some interests watching this case that don’t really want to see a level playing
field and may have hoped that this appeal could have served to at least partially undo what they hubristically
and mistakenly regard as the misguided
rulings of the Supreme Court of Canada and the regrettable results, from their point
of view, of parliamentary democracy in the form of Bill C-11.

At any rate, at least two very credible potential
interveners have indeed started their engines. The countdown is progressing.

There will likely be some to and fro on these intervention
applications, but it would frankly be surprising if they were not allowed in
these circumstances.